Kunji Amma Kunjulekshmi Amma vs Parameswara Bharathigal

K. Sankaran, J.—This appeal has been preferred by Defendant 1 in the case. She is holding the suit property on the strength of Ex. A of the year 1051 granted in favour of her predecessor- in-interest by Plaintiff''s predecessor. The document is styled as an ''Uzhavupattom'' deed and it stipulates for the annual payment of certain dues by the tenant. The present suit is for recovery of such dues for a period of thirteen years prior to the date of the suit. For the paddy portion of such arrears 18 per cent, interest and for the money portion 12 per cent, interest have also been claimed. The contentions raised by the Defendant were all negatived and the claim was decreed after limiting it to a period of 12 years. Hence this appeal.

One of the contentions urged on behalf of the Appellant Defendant is that the tenure under Ex. A is a ''kanom'' demise coming under the Travancore Jenmi and Kudiyan Act and that therefore Plaintiff cannot seek to recover the dues as fixed in Ex. A, but can only sue for the ''jenmikaram'' that may be found to be due on the basis of Ex. A. In order that the demise under Ex. A may be said to be a ''kanam'' coming under the Jenmi and Kudiyan Act, the essential condition to be satisfied is that the property demised must be ''jenmom'' property as defined in the Act. This definition excludes ''pandaravaga'' properties of all categories. In the plaint schedule the Inam of the properties dealt with under Ex. A is specified as ''Pandaravaga danam''. The correctness of this definition was not challenged in the written statement filed by the Defendant. We perused the settlement Register relating to these properties and there also the properties are described as ''Pandaravaga danam''. Thus it is clear that the properties are not ''jenmom'' properties as defined in the Jenmi and Kudian Act. This fact by itself is sufficient to show the tenure under Ex. A is not a ''kanam'' demise coining under the Jenmi and Kudiyan Act. It is also seen that there is no provision in Ex. A for any renewal or payment of renewal fees. It is not shown that such fees were recovered at any time. Considered in all these aspects the conclusion is irresistible that the tenure under Ex. A does not amount to a ''kanom'' demise coming under the Jenmi and Kudiyan Act. It follows, therefore, that there is no substance in the contention that the Plaintiff can recover only the ''jenmikaram'' due in respect of these properties. No such ''Jenmikaram'' can be settled for these properties. Apart from this aspect of the matter, it is unnecessary in the nature of this suit where properties are not sought to be recovered, to consider the further question, whether Plaintiff has the right to recover such possession or whether an irredeemable tenure has been created in favour of the tenant by virtue of the nature and terms of Ex. A, does not arise for consideration. It is, therefore, left open.

The second point urged on behalf of the Appellant is that not more than six years'' arrears can be decreed. In view of the finding that Ex. A does not amount to a ''kanom'' demise coming under the Jenmi and Kudiyan Act, it is clear that there is no statutory charge in favour of the Plaintiff for the arrears due to him on the basis of Ex. A. The claim can be enforced only on the basis of the agreement embodied in Ex. A which is a document in writing and registered. On that basis six years'' past arrears can alone be claimed and anything beyond that period will be barred by limitation. Accordingly we hold that Plaintiff can get a decree for recovery of six years'' arrears only up to the date of the suit.

Lastly there is the question of interest on the arrears. There is no stipulation in Ext. A for payment of interest on the arrears. Hence interest can be awarded only by way of damages and it cannot exceed 6 per cent, for the money portion and 10 per cent for the paddy portion. We, therefore limit the interest on the arrears recoverable by the Plaintiff for the period of six years prior to the date of suit, to 6 per cent, on the money portion and to 10 per cent, for the paddy portion.

In the result this appeal is allowed only to'' the extent indicated above and is dismissed in other respects. The Plaintiff is given a decree for recovery of arrears at the rate claimed in the plaint for a period of six years prior to the date of suit. The arrears will carry interest at 6 per cent on the money portion and at 10 per cent, on the paddy portion. Rate, of commutation adopted in the plaint is left undisturbed. A proper and revised decree will be prepared in these terms. Since the Appellant has partly succeeded and has partly failed, we direct the parties to suffer their costs in this Court.